Facts: In Samson, the Supreme Court distinguished a parolee from a probationer
in the context of the Fourth Amendment. 547 U.S.843 (2006). The Supremes explained that parolees have a lower expectation of
privacy than probationers.

The Ninth, however, has decades of law that equates
the two – and that permits suspicionless searches of probationers. Id.

In the present case, King was a
probationer. A gun was found when his bedroom was searched without “reasonable
suspicion.” See United States v. King,
672 F.3d 1133, 1139 (9th Cir. 2012) (three judge panel decision). The district court upheld the search.

King then argued in the Ninth that after
Samson, reasonable suspicion was
required for probation searches. The three-judge panel upheld the search under Ninth
authority that permits probation searches without any suspicion -- though
Judges Graber and Berzon urged en banc
review in a concurring decision. Id.
at 1139, see also blog here(discussing Judge Graber's earlier concurrence in Baker).

Issue(s): Do probationers and parolees have
identical expectations of privacy (i.e., none)
after Samson?

Held: “We
overrule Motley v. Parks, 432 F.3d
1072 (9th Cir. 2005), the precedent on which it relies, Moreno v. Baca, 400 F.3d 1152 (9th Cir. 2005), and United States v. Harper, 928 F.2d 894
(9th Cir. 1991), and later cases that rely on it, including United States v. Baker, 658 F.3d 1050 (9th Cir. 2011), Sanchez v. Canales, 574 F.3d 1169
(9th Cir. 2009), and United States v.
Lopez, 474 F.3d 1208 (9th Cir. 2007), to the extent they hold that ‘there is
no constitutional difference between probation and parole for purposes of the
fourth amendment.’ Motley, 432 F.3d
at 1083 n.9 (internal quotation marks omitted). These cases conflict with the Supreme
Court's holding that ‘parolees have fewer expectations of privacy than
probationers.’ Samson v. California,
547 U.S. 843, 850 (2006). United States
v. King, 672 F.3d 1133 (9th Cir. 2012), is vacated, and the case is referred
to the original panel for disposition consistent with this opinion.”

Of Note: That “holding” quote above? That’s
the entireen banc opinion. But very good things come in small packages. In
one fell swoop, the Court wipes out two decades of lousy precedent that
effectively stripped probationers of all Fourth Amendment rights.

What will be
the new search standard for probationers? That important question rests in the
hands of Judges Graber, and Berzon and Tallman as the issue returns to the
original three-judge panel. Stay tuned – their King decision will be a lead Fourth Amendment case in the Ninth.

How to
Use: If your case involves a probation
search, the cops probably got it wrong. Law enforcement officers have been
actively advised that “reasonable suspicion” is not required for a probation search. See e.g., article for law enforcementhere.

That is very likely untrue. Until the dust settles, the equation is simple:
probation search = King + suppression
motion.

For
Further Reading: In Northern California, cops have been pairing
with probation officers to conduct suspicionless searches of probationers –
because (and we quote) they “all share the same pool of dirtbags!!” For some refreshingly candid law enforcement discussions
on their use (and abuse) of probation searches, visit their eye-opening forum
here . (“My S.O. brothers lick their chops
when they find out a subject is on felony probation with full search and
seizure conditions. Warrantless entry with no need for PC is sooooo nice!!”)

Image of
King Pepin the Short, King of the Franks, from http://www.christian-history.org/faq-should-christians-tithe.html